Assignment 3. Common questions

Read the common questions and the answers to them. Do you agree with the advice? Make reports in the lesson.

a) Do I need permission to make a translation of part of a work?

In Australia, infringement is said to have occurred if the whole or a “substantial part” of a work is used. The phrase “substantial part” is not defined in the Copyright Act. In their interpretations, the courts have adopted a “qualitative” approach to this term, deeming that a small part may still be substantial if it is an essential, distinctive, important or recognisable part of the original work. As a result, there is no minimum amount that may be translated without first obtaining permission.

b) What should I do if I can’t find the copyright owner?

Making a translation of a protected work without permission involves a risk that may not be worth running. It is an infringement of copyright to make the translation, and a copyright owner is entitled to take legal action against such an infringement. If successful, a court can award the copyright owner the remedies of damages, account of profits, delivery up of infringing articles and injunctions (orders to do or not do something). The infringer may also be liable not only for their own costs in the action, but also the costs of the copyright owner.

Also, a publisher may not be willing to publish a translation of a work where the translator cannot show that permission to make the translation has been obtained.

c) I have been commissioned to do a translation. If it is published do I have any rights to ongoing royalties?

This will depend on the agreement you had with the person who commissioned the translation. Generally, you will retain copyright in your work, and the person who commissioned you will retain the right to use the translation for the purpose for which it was commissioned.

The agreement may have allowed subsequent publication, and if that is the case, you will need to look at the agreement to see whether you are entitled to royalties. If the subsequent publication was not part of the original agreement, you may have the right to seek some compensation for this use.

d) Does copyright subsist in a translation?

Even if you are infringing someone else’s copyright or even if you are unlawfully translating someone else’s work, your work will itself qualify for protection as an original copyright.

As a translator you have created something original. As long as you have not copied someone else’s translation and providing you have not pledged your right to someone else, you still own the copyright.

e) Who owns the translation?

The author owns the translation. As a freelance translator, you as the author own the translation. However if you are an employee or a salaried worker, your employer is the owner of your translation. Authorship does not necessarily mean ownership in copyright terms. Under American law you can sign away your author’s rights.

f) What happens if an agency commissions you?

Subject to contract and regardless of contract, you will be the first owner of copyright. You may then give that copyright away, but you are still the owner of the copyright in the translation.

Consequently, there is a layering of copyright. There is the copyright in the original language and there is then a copyright in the translation. The latter is often called a dependent copyright because it is dependent on another copyright for its existence.

As an example, Proust who died in 1922 is out of copyright in the UK (he may still be in copyright in France due to different rules) but the Scott Moncrieff translations of the works of Proust and their adaptations by later translators remain in copyright.

So, in terms of layered rights, there is a first copyright with the original work. There is then a second copyright, which is dependent on the original work. And the person who makes the revision of the works will also have a copyright.

There is another curious issue. If you are translating from Norwegian into English and then someone uses your translation to translate from English into French, you as the translator into English are entitled to charge a fee for the translation of your English translation into French. This is because – as long as you have not given that right away – somebody is layering another copyright on your copyright.

g) What if your translation has been partly computer generated? Who owns the computer-generated work?

Broadly speaking, if you press the button, then you own the computergenerated work. The person who operates the program owns the copyright, and not the creator of the program.

However the substrata material in the computer is relevant. If the computer is simply borrowing large chunks of phrases that someone else has generated, then you may find that in creating the computergenerated work – although the final product may be yours – you may also be infringing other people’s rights.

On this basis, how do you work out a relationship with the person who commissioned you? It is important to remember that it is hard to reverse a relationship once it has been established for a long time.

Several factors come into play: is the relationship properly governed by contract; what are the implicit rights granted on a translation; do you simply invoice for your services?

If you are commissioned to do a translation and this translation is used in a company report, there is no immediate problem. The translation is printed and goes out. There is what is called an implied license. If it is also contemplated that that company report will be placed on the internet, then there may be an implied licence included as part of a permanent installation on the internet. But it may not be implied that that company report or large extracts of it will be included in a book about the company written by someone else reviewing the affairs of the company five years later. In which case, you, as the author of the translation, may be able to request another fee for the translation. In the same way as a photographer, you may be entitled to repeat fees for the use of your translation.

h) How long is the translation protected for?

You are the author of a literary work, therefore you are entitled to exactly the same protection as any author of any literary work. Throughout most of the western world – but not all of it – you are protected for your life plus 70 years. This is the period of protection of copyright in literary works.